Case 1:18-cv-00385-KG-CG Document 7 Filed 11/29/19 Page 1 of 11
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`LOGAN CHENEY,
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`Petitioner,
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`vs.
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` No. CIV 18-0196 JB\CG
` No. CIV 18-0218 JB\CG
`BETTY JUDD, Warden, and No. CIV 18-0385 KG\CG
`ATTORNEY GENERAL OF
`THE STATE OF NEW MEXICO
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`Respondents.
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`MEMORANDUM OPINION AND ORDER
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`THIS MATTER comes before the Court on: (i) Petitioner’s Amended Habeas Corpus
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`Petition Under 28 U.S.C. § 2254, filed April 16, 2018 (No. CIV 18-0218 JB\CG, Doc.
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`8)(“Amended Petition”); (ii) Petitioner’s Petition for Writ of Habeas Corpus, filed April 25, 2018
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`(No. CIV 18-0385 KG\CG, Doc. 1)(“Second Habeas Petition”); (iii) Petitioner’s Motion to
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`Consolidate, filed May 10, 2018 (No. CIV 18-0218 JB\CG, Doc 13)(“First Motion to
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`Consolidate”); (iv) Petitioner’s Motion to Consolidate, filed May 10, 2018 (No. CIV 18-0385
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`KG\CG, Doc. 6)(“Second Motion to Consolidate’); and (v) Plaintiff’s Motion to Consolidate, filed
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`May 10, 2018 (No. CIV 18-0196 JB\CG, Doc. 24)(“Third Motion to Consolidate”). Petitioner
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`Logan Cheney seeks to consolidate his two habeas actions (No. CIV 18-218 JB\CG and No. CIV
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`18-385 KG\CG) and his 42 U.S.C. § 1983 civil rights action (No. CIV 18-196 JB\CG). In the
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`habeas actions, Cheney challenges the constitutionality of his state court convictions for
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`aggravated battery. See Amended Petition at 1; Second Habeas Petition at 1. The Honorable
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`Carmen Garza, United States Magistrate Judge for the United States District Court for the District
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`of New Mexico, ordered Cheney to show cause why his habeas claims should not be dismissed for
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`failing to exhaust state remedies, as required by 28 U.S.C. § 2254(b)(1)(A). See Order to Show
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`Cause at 1, filed May 1, 2018 (No. CIV 18-0218 JB\CG, Doc. 11). Having reviewed the
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`Response, the record, and applicable law, the Court will consolidate the two habeas actions but
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`dismiss both cases without prejudice.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`The following background information was taken from the Amended Petition in No. CIV
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`18-0218 JB\CG and Cheney’s state court criminal docket, which is subject to judicial notice. See
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`United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007)(noting that district courts have
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`“discretion to take judicial notice of publicly-filed records . . . and certain other courts concerning
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`matters that bear directly upon the disposition of the case at hand”).
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`On May 7, 2015, the State of New Mexico charged Cheney with attempted murder,
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`shooting at a dwelling or occupied building and tampering with evidence. See Criminal
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`Information in case no. D-1116-CR-2015-00385. Cheney later pled guilty to aggravated battery
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`causing great bodily harm and aggravated battery with a deadline weapon in violation of N.M.
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`Stat. Ann. §§ 30-03-05(C) and 31-18-16. See Plea and Disposition Agreement, entered
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`November 3, 2017 in case no. D-1116-CR-2015-00385. On December 5, 2017, the State District
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`Court sentenced Cheney to seven years in prison, followed by two years of parole. See Amended
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`Petition at 1.
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`Cheney then initiated a series of actions in federal court. First, Cheney filed a civil rights
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`complaint. See Pro Se Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 at 1, filed February
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`28, 2018 (Doc. 1)(“Complaint”). Cheney then filed a motion challenging his State sentence’s
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`length. See Motion to Resentence on the Grounds of Unduly Harsh and Excessive Sentencing,
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`filed On March 6, 2018 (Doc. 1)(“Motion”). On March 14, 2018, Magistrate Judge Garza
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`explained that Cheney must file a habeas proceeding under 28 U.S.C. § 2254 if he wished to
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`challenge his state sentence in federal court. See Order to Cure Deficiency at 1, filed March 14,
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`2018 (Doc. 3). Cheney then submitted a § 2254 Habeas Corpus Petition. See Petition Under 28
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`U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody at 1, filed March 23, 2018
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`(Doc. 6). However, he failed to sign that submission under penalty of perjury as required by
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`Habeas Corpus Rule of Procedure 2(c)(5). Magistrate Judge Garza again required Cheney to cure
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`the deficiency. See Second Order to Cure Deficiency, filed April 3, 2018 (Doc. 7). Cheney then
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`filed the Amended Petition on April 16, 2018. See Amended Petition at 1-3. Cheney also filed
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`a Motion for Leave to Proceed In Forma Pauperis on April 16, 2018 (Doc. 9), which the Court
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`granted on April 25, 2018, see Order Granting Motion to Proceed in Forma Pauperis at 1 (Doc.
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`10). On the same day, Cheney filed a second habeas corpus action under 28 U.S.C. § 2254. See
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`Second Habeas Petition at 1.
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`In the habeas proceedings, Cheney asks the Court to vacate his state court sentence. See
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`Amended Petition at 7, 10; see also Second Habeas Petition at 3. Cheney raises claims for
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`“unduly harsh and excessive sentencing,” “bias . . . of court officers,” and double jeopardy
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`violations. Second Habeas Petition at 1. Cheney has not raised any of his federal claims before
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`the New Mexico Supreme Court. See Amended Petition at 3; Second Habeas Petition at 3.
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`Accordingly, Magistrate Judge Garza ordered Cheney to show cause why his Amended Petition
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`should not be dismissed for failure to exhaust state remedies. See Order to Show Cause, filed
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`May 1, 2018 (Doc. 11)(“Third Order to Show Cause”). See 28 U.S.C. § 2254(b)(1)(A) (requiring
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`a habeas applicant to exhaust “remedies available in the Courts of the State”).
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`Cheney responded to the Third Order to Show Cause. See Response at 1, filed May 10,
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`2018 (Doc. 12) Cheney argues that the exhaustion requirement should be excused because: (i)
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`the time for filing a direct criminal appeal is expired; (ii) he is ignorant of the law; and (iii) he filed
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`two other federal proceedings -- another habeas proceeding and a 42 U.S.C. § 1983 civil rights
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`action. See Response at 1. Cheney also asks that the Court consolidate all three federal actions.
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`See Motion at 1.
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`LAW REGARDING CONSOLIDATION
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`Rule 42 of the Federal Rules of Civil Procedure provides: “If actions before the court
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`involve a common question of law or fact, the court may: (1) join for hearing or trial any or all
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`matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders to avoid
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`unnecessary cost or delay.” Fed. R. Civ. P. 42(a). In deciding whether to grant a motion to
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`consolidate, the court should initially consider whether the cases to be consolidated involve a
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`common question of law or fact. See Servants of the Paraclete, Inc. v. Great American Insurance
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`Co., 866 F. Supp. 1560, 1572 (D.N.M. 1994)(Burciaga, J.). If there is a common question, the
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`court should weigh the interests of judicial convenience in consolidating the cases against the
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`delay, confusion, and prejudice that consolidation might cause. See Servants of the Paraclete v.
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`Great American Insurance Co., 866 F. Supp. at 1572. The party moving for consolidation bears
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`the burden of demonstrating that consolidation is desirable. See Servants of the Paraclete v. Great
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`American Insurance Co., 866 F. Supp. at 1572.
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`Consolidation does not result in a merger of separate suits into a single cause of action.
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`See Harris v. Ill–Cal. Esp., Inc., 687 F.2d 1361 (10th Cir. 1982).
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`“[C]onsolidation does not cause one civil action to emerge from two; the actions
`do not lose their separate identity; the parties to one action do not become parties
`to the other” ... Instead, consolidation is an artificial link forged by a court for the
`administrative convenience of the parties, it fails to erase the fact that, underneath
`consolidation's façade, lie two individual cases.
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`Chaara v. Intel Corp., 410 F.Supp.2d 1080, 1089, 1094 (D.N.M. 2005)(Browning, J.)(quoting
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`McKenzie v. United States, 678 F.2d 571, 574 (5th Cir. 1982)).
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`The Court has broad discretion in determining whether to consolidate cases. See Gillette
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`Motor Transp., Inc. v. N. Okla. Butane Co., 179 F.2d 711 (10th Cir. 1950). Consolidation is a
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`question of convenience and economy in judicial administration, and the court is given broad
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`discretion to decide whether consolidation under rule 42(a) would be desirable, and the district
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`judge's decision inevitably is highly contextual. See 9A Charles Alan Wright, Arthur R. Miller,
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`Mary Kay Kane, Richard L. Marcus & Adam N. Steinman, Federal Practice & Procedure, Civil §
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`2383 at 26–31 (3d ed. 2008). A court’s decision to grant or deny consolidation is reviewed for
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`abuse of discretion and a court's denial of a party’s request to consolidate will be affirmed on
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`appeal absent clear error or exigent circumstances. See Skirvin v. Mesta, 141 F.2d 668, 672 (10th
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`Cir. 1944); Am. Emp'rs Ins. Co. v. Bottger, 545 F.2d 1265 (10th Cir. 1976).
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`LAW REGARDING § 2254 AND EXHAUSTION OF STATE REMEDIES
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`Section 2254 provides:
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`a district court shall entertain an application for a writ of habeas corpus in behalf
`of a person in custody pursuant to the judgment of a State court only on the ground
`that he is in custody in violation of the Constitution or laws or treaties of the United
`States.
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`28 U.S.C. § 2254(a). When a state prisoner challenges his custody and, by way of relief, seeks to
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`vacate his sentence and obtain immediate or speedy release, his sole federal remedy is a writ of
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`habeas corpus. See Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); Henderson v. Sec’y of Corr.,
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`518 F.2d 694, 695 (10th Cir. 1975).
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`A writ of habeas corpus generally may not be granted unless the applicant has exhausted
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`state remedies. See O’Sullivan v. Boerckel, 526 U.S. 838 (1999); Dever v. Kansas State
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`Penitentiary, 36 F.3d 1531, 1534 (10th Cir. 1994). “The exhaustion requirement is satisfied if the
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`federal issue has been properly presented to the highest state court, either by direct review of the
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`conviction or in a postconviction attack.” Dever v. Kansas State Penitentiary, 36 F.3d at 1534.
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`“Fair presentation, in turn, requires that the petitioner raise in state court the substance of his
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`federal claims.” Williams v. Trammell, 782 F.3d 1184, 1210 (10th Cir. 2015)(internal quotation
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`marks omitted). “This includes not only the [federal] constitutional guarantee at issue, but also
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`the underlying facts that entitle a petitioner to relief.” Dever v. Kansas State Penitentiary, 36 F.3d
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`at 1534. See Fairchild v. Workman, 579 F.3d 1134, 1149 (10th Cir. 2009)(“A claim is more than
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`a mere theory on which a court could grant relief; a claim must have a factual basis, and an
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`adjudication of that claim requires an evaluation of that factual basis.”)(quotations omitted). The
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`Court can excuse the exhaustion requirement “only if there is no opportunity to obtain redress in
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`state court or if the corrective process is so clearly deficient as to render futile any effort to obtain
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`relief.” Duckworth v. Serrano, 454 U.S. 1, 3 (1981). See 28 U.S.C. § 2254 (allowing a writ of
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`habeas corpus in the absence of state remedy exhaustion only if “there is an absence of available
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`State corrective process” or “such circumstances exist that render such process ineffective to
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`protect the rights of the applicant.”).
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`“Sua sponte consideration of exhaustion of state remedies . . . is explicitly permitted” where
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`the failure to exhaust appears on the face of the petition. United States v. Mitchell, 518 F.3d 740,
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`746 n.8 (10th Cir. 2008). As the United States Court of Appeals for the Tenth Circuit explained,
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`“habeas proceedings are different from ordinary civil litigation and, as a result, [the] usual
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`presumptions about the adversarial process may be set aside.” United States v. Mitchell, 518 F.3d
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`at 746. Rule 4 of the the Rules Governing Section 2254 Cases in the United States District Courts,
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`effective February 1, 1997 and amended on February 1, 2010 (hereinafter, “Habeas Corpus
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`Rules”), requires sua sponte review of habeas petitions. “If it plainly appears from the petition
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`and any attached exhibits that the petitioner is not entitled to relief … the judge must dismiss the
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`petition.” Habeas Corpus Rule 4. “If the petition is not dismissed, the judge must order the
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`respondent to file an answer. . . .” Habeas Corpus Rule 4.
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`LAW REGARDING PRO SE LITIGANTS
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`When a party proceeds pro se, the district court construes his or her pleadings liberally, and holds
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`them to a “less stringent standard than [that standard applied to] formal pleadings drafted by
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`lawyers.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). “[I]f the Court can reasonably
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`read the pleadings to state a valid claim on which [the petitioner] could prevail, it should do so
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`despite [his] failure to cite proper legal authority, his confusion of various legal theories, his poor
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`syntax and sentence construction, or his unfamiliarity with pleading requirements.” Hall v.
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`Bellmon, 935 F.2d at 1110. The Court should liberally construe the pro se litigant’s factual
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`allegations. See Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). The Court
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`will not, however, “assume the role of advocate for the pro se litigant.” Hall v. Bellmon, 935 F.2d
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`at 1110. Moreover, “pro se status does not excuse the obligation of any litigant to comply with
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`the fundamental requirements of the Federal Rules of Civil and Appellate Procedure.” Ogden v.
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`San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).
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`ANALYSIS
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`Cheney asks the Court to consolidate his three federal actions and to vacate his state
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`criminal sentence for aggravated battery. See Motion at 1. The Court will address consolidation
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`before reaching the merits of his habeas claims. The Court will consolidate only Cheney’s habeas
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`claims, and will dismiss each habeas because Cheney did not exhaust his State remedies.
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`I.
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`THE COURT WILL CONSOLIDATE ONLY CHENEY’S HABEAS CLAIMS.
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`Cheney asks the Court to consolidate the following three federal actions: (i) the present
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`action, CIV. No. 18-218 JB/CG, in which Cheney seeks to vacate his battery convictions in State
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`criminal case no. D-1116-CR-2015-00385, see Amended Petition at 2; (ii) Cheney’s second habeas
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`action, CIV. No. 18-385 KG/CG, which attacks the same state battery convictions, see Second
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`Habeas Petition at 2; and (iii) Cheney’s civil rights action under 42 U.S.C. § 1983, Civ. No. 18-
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`196 JB/CG, in which Cheney raises claims for cruel and unusual punishment based on his
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`placement in segregation, see Complaint at 2. The two habeas petitions involve “common
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`question of law [and] fact.” Leviton, 2007 WL 505784, at *3. Each case challenges the same
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`state criminal proceeding, and the Respondent is same in both cases. Compare Amended Petition
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`at 1, with Second Habeas Petition at 1. The grounds for relief are also nearly identical. Compare
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`Amended Petition at 1, with Second Habeas Petition at 1. In the first case, Cheney alleges the
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`convictions should be vacated based on, among other things, “unduly harsh and excessive
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`sentencing,” court officials’ “bias and prejudice”, his placement in segregation, and “double
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`jeopardy.” Amended Petition at 5-6. In his Second Habeas Petition, Cheney challenges the
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`convictions based on “unduly harsh and excessive sentencing; double jeopardy; cruel and unusual
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`punishment; [and] bias and prejudice due to firearm enhancement.” Second Habeas Petition at 2.
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`Further, because both habeas cases challenge the same criminal proceeding, the facts and law
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`pertaining to exhaustion will also be identical. See Fed. R. Civ. P. 42(a). For these reasons, and
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`because consolidation will promote judicial efficiency, the Court will grant Cheney’s request to
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`consolidate his two habeas proceedings.
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`As to Cheney’s civil rights case, consolidation is not appropriate. Cheney’s civil rights
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`case primary challenges his conditions of confinement in prison, rather than his underlying
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`criminal conviction. See Complaint at 3. “Habeas Corpus is not an appropriate vehicle to
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`challenge conditions of confinement.” Friedman v. Anderson,1 249 Fed. App’x 712, 712 (10th
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`1Friedman v. Anderson is an unpublished opinion, but the Court can rely on an unpublished
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`Cir. 2007)(unpublished). See Rael v. Williams, 223 F.3d 1153, 1154 (10th Cir. 2000)(reiterating
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`that “federal claims challenging the conditions of . . . confinement generally do not arise under”
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`habeas statutes); United States v. Sisneros, 599 F.2d 946, 947 (10th Cir. 1979)(concluding that
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`claims for cruel and unusual punishment based on medical mistreatment are “not cognizable in a
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`federal habeas corpus proceeding”). The Court therefore will deny Cheney’s request to
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`consolidate CIV No. 18-196 JB\CG with his habeas proceedings.
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`II.
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`CHENEY’S HABEAS CLAIMS ARE DEFECTIVE BECAUSE HE DID NOT
`EXHAUST ALL AVAILABLE STATE REMEDIES.
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`As noted above, the court cannot reach the merits of a petitioner’s habeas claims unless
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`“the federal issue has been properly presented to the highest state court, either by direct review of
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`the conviction or in a postconviction attack.” Dever v. Kansas, 36 F.3d at 1534. Courts must
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`dismiss habeas claims without prejudice where the “petitioner’s failure to exhaust is clear from the
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`face of the petition,” Allen v. Zavaras, 568 F.3d 1197, 1201 (10th Cir. 2009), and no other §2254
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`exceptions to the exhaustion rule apply, see Kilgore v. Attorney Gen. of Colorado, 519 F.3d 1084,
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`opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R.
`32.1(A)(“Unpublished opinions are not precedential, but may be cited for their persuasive value.”).
`The Tenth Circuit has stated:
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`In this circuit, unpublished orders are not binding precedent, . . . and we have
`generally determined that citation to unpublished opinions is not favored.
`However, if an unpublished opinion or order has persuasive value with respect to a
`material issue in a case and would assist the court in its disposition, we allow a
`citation to that decision.
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`United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005)(citations omitted). The Court
`concludes that Herd v. Tapia, 356 Fed. App’x. 140 (10th Cir. 2009), Friedman v. Anderson, 249
`Fed. App’x 712, and Gunderson v. Abbott, 172 F. App’x 806 (10th Cir. 2006), have persuasive
`value with respect to a material issue, and will assist the Court in its disposition of this
`Memorandum Opinion and Order.
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`1089 (10th Cir. 2008)(clarifying that sua sponte dismissal is permitted where the procedural defect
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`is “clear from the face of the petition itself”). Cheney’s habeas petitions both demonstrate that
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`Cheney has not exhausted his State Court remedies. The Amended Petition contains the
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`following question: “Have all grounds for relief that you have raised in this petition been presented
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`to the highest state court having jurisdiction?” Amended Petition at 12. Cheney responds “[n]o,”
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`and also indicates throughout the Amended Petition that he believes his federal district court
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`proceedings satisfy the exhaustion requirement. See Amended Petition at 12. Similarly, the
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`Second Habeas Petition states that “[t]his is the first time in a habeas for these grounds being
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`raised.” Second Habeas Petition at 3. The state court docket also confirms that Cheney did not
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`file a direct appeal or a state habeas petition. See Docket activity in case no. D-1116-CR-2015-
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`00385.
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`In his Response, Cheney contends that the exhaustion requirement should be excused
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`because: (i) the time for filing a direct criminal appeal is expired; (ii) he is ignorant of the law; and
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`(iii) he has attempted to exhaust his claims through various federal cases. See Response at 1.
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`These arguments are insufficient to resist dismissal. The court can excuse the exhaustion
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`requirement “only if there is no opportunity to obtain redress in state court or if the corrective
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`process is so clearly deficient as to render futile any effort to obtain relief.” Duckworth v.
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`Serrano, 454 U.S. at 3. Courts can reach the merits of unexhausted claims when “state procedural
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`snarls or obstacles preclude an effective state remedy against unconstitutional convictions.”
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`Bartone v. United States, 375 U.S. 52, 54 (1963).
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`Cheney has not alleged that New Mexico’s corrective process is insufficient. Although
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`he elected not to appeal, there is no time limit on filing a habeas petition in state court, provided it
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`relates to the underlying conviction. See N.M. R. Ann. 5-802. Further, ignorance of the law,
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`including Cheney’s belief that he could exhaust his claims in federal court, is not a reason to waive
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`the exhaustion requirement, despite Cheney’s pro se status. See Marsh v. Soares, 223 F.3d 1217,
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`1219 (10th Cir. 2000)(holding that ignorance of the law cannot be used to overcome the procedural
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`requirements of § 2254); Herd v. Tapia, 356 F. App’x 140, 143 (10th Cir. 2009)(unpublished)(“[I]t
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`is well-settled that ignorance of the law cannot excuse the failure to exhaust”); Gunderson v.
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`Abbott, 172 F. App’x 806, 809 (10th Cir. 2006)(unpublished)(“[I]gnorance of the [requirement to
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`exhaust] . . . neither removes fault from the petitioner nor sets him apart from any other case.”).
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`The Court therefore concludes that Cheney has not exhausted his state court remedies. The Court
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`dismisses both consolidated habeas actions (Civ. No. 18-218 JB/CG with Civ. No. 18-385 KG/CG)
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`without prejudice.
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`IT IS ORDERED that (i) the Petitioner’s Motion to Consolidate, filed May 10, 2018 (No.
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`CIV 18-0218 JB\CG, Doc. 13), is granted; (ii) the Petitioner’s Motion to Consolidate, filed May
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`10, 2018 (No. CIV 18-0385 KG\CG, Doc. 6), is granted; (iii) Plaintiff’s Motion to Consolidate,
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`filed May 10, 2018 (No. CIV 18-0196 JB\CG, Doc. 24), is denied; (iv) Cheney’s Petition for Writ
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`of Habeas Corpus, filed April 1, 2018 (No. CIV 18-0385 KG\CG), is dismissed without prejudice;
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`and (v) Cheney’s Amended Petition Under 28 U.S.C. § 2254, filed April 16, 2018 (No. CIV 18-
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`0218 JB\CG), is dismissed without prejudice.
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`Parties:
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` _____________________________________
` UNITED STATES DISTRICT JUDGE
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`Logan Cheney
`Northwest New Mexico Correctional Center
`Grants, New Mexico
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`Petitioner pro se
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